Unlearn to learn: The art of learning is in unlearning. We all say that learning is important and we keep learning throughout our life knowingly or unknowingly. But it is too rare to be heard that we have to learn the process of unlearning to learn new and better things. In my experience, unless we learn the unlearning trick, it is at times impossible to be in the learning mode. In fact, little deeper you delve into this and you will understand that unlearning is inherent into learning.

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Saturday, August 28, 2010

How long the laws, the system, the society and the judiciary will continue to keep abusing the women in India by taking her side? Let her be free and she needs no mercy of you.

Just a day prior to the pronouncement of the insightful judgment by one of the finest Judges of Modern India, Justice S N Dhingra, I was arguing a case on similar grounds in the High Court itself. And my arguments, interestingly, were the same though the judge did not seem to appreciate my views though gave a patient hearing. Every now and then I am approached by the aggrieved husbands when their wives would like to use any and every legal remedy available in the statute books against the husband. This, by no means, should be interpreted to go against women as there have been a great number of cases which I have fought for and still fighting for the interest of women too. The approach of tit for tat in any relationship, matrimonial in particular, has always been the basis of destruction of relationship and of any bridge to bridge the developed gap thereof. In my aforementioned case. the estranged wife has been hell bent on teaching some sort of lesson to the husband for reasons best known to her and in pursuant thereof has been filing mindless cases against the man with every possible fora. The man could not get the divorce as he failed to prove to the satisfaction of the judge that desertion of his wife had no contribution from the husband and desertion so occurred amounts to cruelty to the husband. Anyway, the husband decided not to appeal against the dismissal (dismissed after 7 years) and this somehow has not gone well with the wife. And for no rhyme or reason she decided to use the new weapon called domestic violence Act, a recently enacted law for the rescue of the women, and filed a section 12 complaint against him. She also filed a fraud case for some transaction happened years ago between them having no bearing of any sort on any of them. She was awarded a maintenance order of 6000/- under section 24 as pendente lite maintenance against which she moved under Article 227 to Delhi High Court to get the same revised to a whopping amount of Rs. 60,000 where I am representing the man. Truly speaking, representing a man in a matrimonial affairs is considered to be a half lost case in the legal fraternity but such are the cases which interest me most. The moment I hear someone say a lost case or a half lost case and a sudden eruption of abound energy I get filled-in with. In the aforementioned case, attempts were made in Lok Adalat to get the matter settled by making the man give some money but the demand of the woman was too high to be matched. But on advises by friends, the man decided to pull all his resources together and borrow money from friends and family to end the 8 years old severe mental torture he was put under by the woman and decided to match the figure thrown by his estranged wife. The moment the woman saw he demand getting fulfilled and thus the 8 years old drama getting wrapped up for once and all, she withdrew herself from the deal and told the president of Lok Adalat that she is not ok with it and asked the matter to be referred back to the court to be decided on merits. 7 hearings of Lok Adalat for nothing??? I could see the man in deep turmoil but I had nothing to console the man with. When the matter came up before the judge in High Court on 26.08. 2010, the judge was told that the man runs very handsomely and hence needs to be told to be given minimum 60,000/- per month. I had few questions and was deeply concerned with the hell the man had to continuously be in for no direct fault of his, other than marrying this woman. The judge commented that my client i.e. the man was handsome and healthy and hence must be making good money. Do you see any logic? I don't. The judge was of the opinion that if no one runs a business for a profit of meager 12,000 INR a month. Do you find him true? I don't. The child of the couple which the lady denied to give to the man studies in a school where the tuition-fee is 20,000/- INR a month and hence the man must bear this cost. I don't see a logic in that. Do you? In India, schools for below 15 years and upto class 8th, at least after RTE act, can be availed for free, rather they would pay for coming to the school. At the same time, there are schools, affording which is much beyond an ordinary family's budget. One decides the luxury after gauging the inflow of the money and not otherwise. It's like that you wish to send your kids for foreign education and hence you demand a much higher salary, disproportionate to your capabilities. When we are striving for equalities amongst men and women, why can't the woman be made earn, that too when she is healthy and educated and she used to work prior to the marriage. If she wants not to give the child to the man and give the best of the facilities and education, she must put herself to some work. Why the whole burden be of the man while the woman rests and rusts.The judge wasn't willing to give up at all and want my client to shell out at least 25000/- which seems to be ridiculous in view of his present earning of 12000/- a month. On this note, the matter was adjourned for 15 days. I am sure that on the next date, I am gonna give many memorable moments to everyone in the court.

No freedom comes cheap, if the women want to be free they need to accept the responsibilities too and it is well proven and established by the new age women we see around us. Many cases which I do of new age women, they don't want any maintenance at all and just want to have amicable separation. I really admire such women. I also admire judges of the flavor of Justice Dhingra who love speaking for truth and truth only....the following judgment drawn by him is an example of his exemplary understanding of the truth and aligning the judgment accordingly.

Unemployed man can't be forced to pay maintenance to wife :DELHI HC

Crl.M.C.No. 491/2009 Sanjay Bhardwaj & Ors. v. The State & Anr.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 9th August, 2010
Date of Order: 27th August, 2010

Versus
The State & Anr. ... Respondents
Through: Mr. O.P.Saxena, APP for the State With Mr. Gajraj Singh, SI
Mr. K.C.Jain, Adv. for the Complainant/Wife

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.

JUDGMENT

The present petition under Section 482 Cr.P.C. assails an order of interim maintenance under The Protection of Women from Domestic Violence Act, 2005 (in short Domestic Violence Act) passed by the learned MM on 16th January, 2008 and confirmed by the learned Additional Sessions Judge in appeal by order dated 29th February, 2008.

2. The petitioner was a Non-Resident Indian, working in Luanda, Angola in Africa as a Manager. He came to India taking leave from his job for marriage. Marriage between the petitioner and respondent no.2/wife was settled through matrimonial advertisement. The respondent wife was MA (English) and MBA. As per her bio-data sent before marriage, she was doing job with a Multinational Company. The marriage between the parties was solemnized on 14th May, 2007 at a Farmhouse in Vasant Kunj and was got registered on 25th May, 2007. The parties lived together for a limited period of 10 days i.e. from 15th May, 2007 to 19th May, 2007 and from 2nd June to 6th June, 2007. While the allegations of husband are that marriage failed within 3 weeks since the wife was suffering from a chronic disease about which no information was given to him before marriage and a fraud was played. The allegations made by wife were as usual of dowry demand and harassment. Since the marriage did not succeed, the husband/petitioner filed a petition under Section 12 of Hindu Marriage Act for declaring the marriage as null and void and the wife first filed an FIR against the husband under Section 498A/406 IPC and then filed an application under Section 12 of Domestic Violence Act.

3. It is not relevant for the purpose of this petition to go into the details of allegations and counter allegations made by each other. Suffice it to say that the learned MM passed an order dated 16th January, 2008 directing husband to pay an interim maintenance of 5000/- pm to the wife. He fixed this maintenance without considering the contentions raised by the husband (as is stated in the order) that the husband lost his job in Angola (Africa) where he was working before marriage because his passport was seized by police and he could not join his duties back. After marriage he remained in India, he was not employed. In the appeal, learned Additional Session Judge noted the contentions raised by the husband that he had become jobless because of the circumstances as stated by him and he had no source of income, he was not even able to maintain himself and had incurred loan, but observed that since the petitioner had earlier worked abroad as Sales Manager and in view of the provisions of Domestic Violence Act, he had the responsibility to maintain the wife and monetary relief was necessarily to be provided to the aggrieved person i.e. wife. He observed that the wife was not able to maintain herself therefore husband, who earned handsomely in past while working abroad, was liable to pay `
5000/- pm to the wife as fixed by the learned MM.

4. A perusal of Domestic Violence Act shows that Domestic Violence Act does not create any additional right in favour of wife regarding maintenance. It only enables the Magistrate to pass a maintenance order as per the rights available under existing laws. While, the Act specifies the duties and functions of protection officer, police officer, service providers, magistrate, medical facility providers and duties of Government, the Act is silent about the duties of husband or the duties of wife. Thus, maintenance can be fixed by the Court under Domestic Violence Act only as per prevalent law regarding providing of maintenance by husband to the wife. Under prevalent laws i.e. Hindu Adoption & Maintenance Act, Hindu Marriage Act, Section 125 Cr.P.C - a husband is supposed to maintain his un-earning spouse out of the income which he earns. No law provides that a husband has to maintain a wife, living separately from him, irrespective of the fact whether he earns or not. Court cannot tell the husband that he should beg, borrow or steal but give maintenance to the wife, more so when the husband and wife are almost equally qualified and almost equally capable of earning and both of them claimed to be gainfully employed before marriage. If the husband was BSc. and Masters in Marketing Management from Pondicherry University, the wife was MA (English) & MBA. If the husband was working as a Manager abroad, the wife with MBA degree was also working in an MNC in India. Under these circumstances, fixing of maintenance by the Court without there being even a prima facie proof of the husband being employed in India and with clear proof of the fact that the passport of the husband was seized, he was not permitted to leave country, (the bail was given with a condition that he shall keep visiting Investigating Officer as and when called) is contrary to law and not warranted under provisions of Domestic Violence Act.

5. We are living in an era of equality of sexes. The Constitution provides equal treatment to be given irrespective of sex, caste and creed. An unemployed husband, who is holding an MBA degree, cannot be treated differently to an unemployed wife, who is also holding an MBA degree. Since both are on equal footing one cannot be asked to maintain other unless one is employed and other is not employed. As far as dependency on parents is concerned, I consider that once a person is grown up, educated he cannot be asked to beg and borrow from the parents and maintain wife. The parents had done their duty of educating them and now they cannot be burdened to maintain husband and wife as both are grown up and must take care of themselves.

6. It must be remembered that there is no legal presumption that behind every failed marriage there is either dowry demand or domestic violence. Marriages do fail for various other reasons. The difficulty is that real causes of failure of marriage are rarely admitted in Courts. Truth and honesty is becoming a rare commodity, in marriages and in averments made before the Courts.

7. I therefore find that the order dated 16th January, 2008 passed by the learned MM and order dated 29th February, 2008 passed by the learned Additional Sessions Judge fixing maintenance without there being any prima facie proof of the husband being employed are not tenable under Domestic Violence Act. The petition is allowed. The orders passed by Metropolitan Magistrate and learned Additional Sessions Judge are hereby set aside.